What Is Trade Dress?

Photo by Neven Krcmarek on Unsplash

Sometimes, you can identify a brand solely by the shape or design of the product. The shape of a Coca-Cola bottle or the blue color of a Tiffany & Co. jewelry box stand out as immediately identifiable. Without any hesitation, you could identify the brands. These aren’t names or logos, but they’re still a form of trademark known as trade dress.

While a trademark is typically used for a name, logo, or slogan, trade dress protects the look and feel of the brand — like the unique packaging of a product or specific design of a store.

Trade dress establishes the source and quality of the goods based on the distinctive image it creates. That then helps the products stand out from the competition. However, not every trade dress is eligible for legal protection. To qualify for trade dress protection, the trade dress must be:

• Non-functional: The trade dress cannot have any practical or useful purpose other than identifying the source of the product or service. The shape of a Coca-Cola bottle is not functional because it doesn’t affect the taste or quality of the drink.
• Distinctive: The trade dress must be either inherently distinctive or have acquired distinctiveness through secondary meaning. To be inherently distinctive, the design is so unique and original that it automatically identifies the source of the product or service. Acquired distinctiveness means that the trade dress has become associated with a particular source over time through extensive use and advertising. For example, the color scheme of a Tiffany & Co. box has acquired distinctiveness because consumers have come to recognize it as a symbol of the company’s jewelry.
• Not generic: The trade dress must not be so common or generic that it does not distinguish the product or service from others in the same category. A good example would be the standard shape of a pizza box. It’s not protectable because most, if not all, pizzerias use that same standard box design — making it impossible, on its own to indicate a specific source.

So long as your trade dress is distinctive, not functional, and not generic, you could protect it with a registered trademark through the U.S. Patent and Trademark Office (USPTO). A registered trademark gives you stronger protection and enforcement rights. To register your trade dress, you will need to submit an application with the USPTO that includes:

• A description and drawing of your trade dress
• A specimen showing how your trade dress is used in connection with your product or service
• A statement of use or intent to use your trade dress in commerce
• A filing fee

When you file, just be prepared to wait. It’s currently taking the USPTO about nine to ten months to assign an examiner to review new applications. Once they review, it, they will issue an opinion and either move your application forward toward registration or issue an office action. To mitigate the risks of receiving an office action, we recommend that you hire a trademark attorney to assist you with your application.

When done right, trade dress is a valuable asset, and you can use it to build a loyal customer base. It’s not without its challenges, though — both in getting it registered and in enforcing your rights. Unlike a standard trademark, trade dress typically requires more than use to get it registered. It usually also needs to acquire secondary meaning, which is to say that people need to associate your brand with the packaging or design.

Have questions about trade dress or trademarks? Send us a message, we’d be happy to help.